Campbell v. Weller

• Decision Date: 07 May 1917
• Docket Number: 865
• Parties: CAMPBELL v. WELLER
• Court: Wyoming Supreme Court

164 P. 881

25 Wyo. 65

CAMPBELL v. WELLER

No. 865

Supreme Court of Wyoming

May 7, 1917

ERROR to District Court, Sheridan County; CARROLL H. PARMELEE Judge.

Action in a justice's court by E. N. Campbell against A. D Weller. There was a judgment for plaintiff, and defendant appealed to the District Court, where the cause was tried to a jury and verdict rendered in favor of plaintiff. From a judgment for defendant notwithstanding the verdict and the denial of plaintiff's motion to dismiss the appeal, and the overruling of plaintiff's motion for a new trial plaintiff brings error.

Reversed.

H. Glenn Kinsley, for plaintiff in error.

The motion to dismiss the appeal from justice court should have been sustained; the trial justice was without authority to transfer the cause to the District Court after trial, but should have returned the files to Justice Hoop, who had original jurisdiction. (Sec. 5220, Comp. Stats. 1910.) Statutory provisions for appeal from justice court must be followed, or the appeal will be stricken from the docket of the appellate court. (Eggart v. Dunning, 15 Wyo. 487; Italian-Swiss Agricultural Colony v. Bartagnolli, 9 Wyo. 289; Ivenson v. Pease, 1 Wyo. 277; 24 Cyc. 655; 3 Corpus Juris., 321, par. 39; 24 Cyc. 660.) The motion to dismiss the appeal should have been sustained; notice of appeal was insufficient. (24 Cyc. 689; Buie v. Great Northern R. Co., 94 Minn. 405, 103 N.W. 11; Beck v. Thompson, 23 Ore. 182, 57 P. 419; Clune v. Wright, 96 Wis. 630, 71 N.W. 1041; Morris v. Brewster, 60 Wis. 229, 19 N.W. 50; State v. Hammond, 92 Mo.App. 231.) Actual knowledge of appeal will not take the place of the notice; notice of appeal is jurisdictional. (24 Cyc. 690.) The District Court erred in granting a motion for judgment notwithstanding the verdict. Said ruling is not justified by Chapter 134, Laws 1915. A verdict should not be directed in a civil case until the testimony is undisputed. The evidence against which the motion was directed should be taken as true with every reasonable inference. (Mulhern v. Union P. R. R. Co., 2 Wyo. 446; Mau v. Stoner, 10 Wyo. 126; Carney Coal Co. v. Benedict, 22 Wyo. 362.) When there is a slight doubt about the facts, the court should not direct the verdict, but should leave it to the jury. (Richardson v. Boston, 19 How. 263; Railroad Co. v. Fraloff, 100 U.S. 27; Parks v. Ross, 11 How. 373; Schuchardt v. Allen, 1 Wall. 370; Elliott v. Ry. Co., 150 U.S. 245; Maas v. White, 37 Mich. 130; Ry. Co. v. Converse, 139 U.S. 469; Lockhart v. Willis, 50 P. 319; Kelley v. Ryes, 29 P. 144; O'Brian v. Miller, 25 Am. St. Rep. 320; Dickson v. Bristol &c Bk., 66 Am. St. Rep. 193; Anthony v. Wheeler, 17 Am. St. Rp. 281; Whitney &c v. Richmond, 37 Am. St. 767; Fox v. Campbell, 30 P. 479; Hickman v. Cruise, 2 Am. St. Rp. 256; Claflin v. Rosenberg, 42 Mo. 439; Carter v. Olive Oil Co., 27 Am. St. 815; Lowe v. Salt Lake City, 57 Am. St. 708; Union Stock &c Co. v. Canoyer, 41 Am. St. 738; Dwyer v. St. Louis &c Co., 52 F. 87; Hanger v. Chicago &c, 3 S.D. 394; Carter v. Chesapeake &c Co., 88 Va. 389; Fritzwater v. Stout, 16 Pa. St. 22; 6 Ency. Pl. & Pr. 683-686; Hickman v. Jones, 9 Wall. 197) The question for consideration in directing a verdict is whether admitting the truth of all the evidence which has been given in favor of the party against whom the motion is directed, including inferences and conclusions, reasonably drawn therefrom, and eliminating conflicting facts and inferences there is enough competent evidence to sustain a verdict should the jury find in accordance therewith. (Cooper v. Flesner, 24 Okla. 47, 103 P. 1016, 23 L. R. A. N. S. 1180; Harris v. Missouri, K. & T. R. Co. , 24 Okla. 341, 103 P. 758, 24 L. R. A. N. S. 858; 6 Ency. Pl. & Pr. 942, 945; 38 Cyc. 1567, 1586; Norvell v. Kanawka & M. R. Co., 67 W.Va. 467, 68 S.E. 288, 29 L. R. A. N. S. 325; Phil. B. & W. R. Co. v. Gatta (Del.), 85 A. 721, 47 L. R. A. N. S. 996; Seigel v. Long, 169 Ala. 79, 53 So. 753, 33 L. R. A. N. S. 1070; Davis v. Albritton, 127 Ga. 517, 56 S.E. 514, 8 L. R. A. N. S. 820.) In order to hold a principal responsible for agent's acts, it is unnecessary to show express authority given in advance to do a particular act, but the agent's authority to bind the principal may be implied from circumstances. (Mechem Agency, Vol. 1, Sec. 717, 2nd Ed.; Murphy v. Cane (N.J.L.), 82 A. 854; Blake v. Domestic Mfg. Co., 64 N.J. Eq. 480; Fifty Ward Savings Bank v. First National Bank, 48 N.J.L. 513; Fifth Nat. Bank v. Navassa Phosphate Co., 119 N.Y. 256; Martin v. Webb, 110 U.S. 7, 28 L.Ed. 49.) The authority of an agent may be inferred from circumstances. (Mitchum v. Dunlap, 98 Mo. 418, 11 S.W. 989; Vrchotka v. Rothschild, 100 Ill.App. 268; Mikles v. Hawkins, 69 N.Y.S. 557, 59 A.D. 253; Killorn v. Prudential Ins. Co., 108 N.W. 861, 99 Minn. 176, 108 N.W. 861.) An agent has authority to do such incidental acts as are necessary to carry into effect the purpose of the agency. (Mechem Agency, Sec. 715; Baldwin v. Garrett, 111 Ga. 876; National Bank v. Old Town Bank, 50 C. C. A. 443; Bayley v. Wilkins, 7 Com. B. 886; Murphy v. K. of C. Bldg. Co., 155 Mo.App. 649, 658; St. Louis Gunning Adv. Co. v. Wannamaker, 115 Mo.App. 270.) The court erred in overruling the motion for a new trial. There were issues joined and conflicting evidence presented and a general verdict in favor of the plaintiff; the motion for judgment, notwithstanding the verdict, should have been denied. (Central Savings Bank v. O'Connor (Mich.), 94 N.W. 11; Southwestern Tel. Co. v. James (Texas), 91 S.W. 654; Freedley v. Gibbons, 119 F. 438.) Defendant should not have judgment notwithstanding the verdict merely because the verdict was contrary to the evidence. (Plunkett v. Detroit Elec. Co. (Mich.), 103 N.W. 620; 11 Enc. Pl. & Pr. 917.) Where there is a conflict in the evidence sufficient to require submission to a jury, the court will not grant a motion for a judgment notwithstanding the verdict. (Blazosseck v. Remington & Sherman Co., 141 F. 1022; 30 Cen. Dig. Judgment, par. 367; County of Montmorency v. Putnum (Mich.), 107 N.W. 895; Hess v. Great Northern Ry. Co. (Minn.), 108 N.W. 7; U. S. v. Gardner, 133 F. 285; McCoy v. Jones, 61 Ohio State, 119, 59 N.E. 219.) The judgment below should be vacated and judgment directed for plaintiff in error, as was awarded in justice court with costs.

LaFleiche & Diefenderfer and J. L. Graverson, for defendant in error.

The motion of plaintiff in error to dismiss the appeal was properly overruled. (Chapter 337, Comp. Stats. 1910.) The appellate procedure prescribed by Sections 5260, 5261, 5262, Comp. Stats. 1910, was followed. Plaintiff in error made no objection to the transfer to another justice and brought himself within the provisions of Sections 5193 and 5235, Comp. Stats. 1910. Statutes relating to appeals are remedial and should receive liberal construction. (2 R. C. L. 29, Sec 6; 3 C. J. 318-19; Friemark v. Rosenkrans, 51 N.W. 557; Crawford v. Wist, 39 P. 218; Italian-Swiss Agricultural Colony v. Bartagnolli, et al., 9 Wyo. 289.) The question of notice is not raised by the petition in error and cannot be considered on appeal. (Hogan, et al., v. Peterson, 8 Wyo. 549.) Justice Story had authority to transfer the papers to the District Court on appeal. (Valadon v. Loman, 127 P. 88.) The notice was sufficient. (Marlowe v. Michigan Stove Co., 137 P. 639; Kremer v. Arians, 124 N.W. 1064; Monroe v. Herrington, 73 S.W. 221; Horrell v. Cal. Ore. & Wash. Asso., 82 P. 889; Maltby v. Superior Court of Spokane County, et al., 34 P. 922.) In the following cases appeal notices far more deficient than the one in the present case were held good: Hender v. Ring, 63 N.W. 282; Friemark v. Rosenkrans, 51 N.W. 557; Noall v. Halonen, et al., 54 N.W. 729; Cowles v. City of Neillsville, 119 N.W. 91; Ga. F. & A. Ry. Co. v. F. R. Penn Tobacco Co., 72 S.E. 443; Darling v. Fremstadt, 127 P. 674; Cowhick v. Jackson, 143 S.W. 558; Paul v. Cragnas, 47 L. R. A. 540; Allen v. Byerly, 48 P. 474; Chipman v. Bronson, 3 Ore. 320; Lancaster v. McDonald, 12 P. 374. The cases cited by the plaintiff in error are clearly distinguishable and are not applicable to the facts in the present case. The notice in this case was issued under Section 5263, Comp. Stats. 1910. It cannot be questioned here because not assigned as error in the motion for a new trial. The notice is sufficient as a matter of law; the District court properly sustained the motion for judgment notwithstanding the verdict. (Chapter 134, Laws 1915.) The duty of a third person in dealing with an assumed agent is explained in Mechem's Agency, 2nd Ed., Vol. 2, p. 1307. He is bound at his peril to ascertain the nature of the agent's authority; having relied upon it, he must be prepared to prove the existence of an agency and the extent of the agent's authority. See also the following cases: Brown, et al., v. Grady, 16 Wyo. 151; Brace v. Northern P. Ry. Co., 115 P. 841; Everdell v. Carrington, 139 N.Y.S. 119; Baker v. Seaward, 127 P. 961; Pluto Powder Co. v. Cuba City State Bank, 141 N.W. 220; Sexsmith, et al., v. Segel-Cooper Co., 88 N.Y.S. 925; Uniontown Groc. Co. v. Dawson, 69 S.E. 845; Wilson v. Schocklee, 126 S.W. 832; Latham v. First Natl. Bank of Ft. Smith, 122 S.W. 992; Allen v. Galveston, Harrisburg & San Antonio R. Co., 94 S.W. 417; Sackville v. Story, 149 S.W. 239.) The burden of proof is upon a third person seeking to hold an alleged principal for the acts of an assumed agent, to prove the authority of the agent. (Anderson, et al., v. Rasmussen, 5 Wyo. 44; 2 C. J., p. 923, par. 662; p. 925, par. 665; Ames v. D. J. Murray Mfg. Co., 89 N.W. 836; Dispatch Printing Co. v. Natl. Bank of Commerce, 124 N.W. 236; Connell v. McLaughlin, 42 P. 218.) When one of two innocent persons must suffer the loss should be borne...